New Cases and Developments

NACUA's Legal Resources staff summarizes current higher education cases and developments and provides the full text of selected cases to members. New cases and developments are archived here for up to 12 months.  Cases provided by Fastcase, Inc.

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Employee Discipline; Collective Bargaining; Faculty & Staff

NLRB General Counsel Issues Guidance on Employee Handbook Rules (July 2, 2018)

National Labor Relations Board General Counsel Memorandum detailing Guidance on Handbook Rules Post-Boeing. Following the National Labor Relations Board (NLRB)’s decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), which enacted a balancing test between employee rights and employer business interests for determining the lawfulness of certain workplace rules, the NLRB Office of the General Counsel issued this Memorandum to guide Regions on the categorization of certain workplace rules and the various factors to balance when considering their lawfulness. Notably, rules discussed in Category 1 (rules that are generally lawful to maintain) include civility rules, no-photography and no-recording rules, rules against insubordination, disruptive behavior rules, rules protecting customer information, rules against defamation, rules against using employers’ intellectual property, rules requiring authorization to speak on behalf of the company, and rules banning disloyalty or self-enrichment. Categories 2 and 3 go on to discuss rules warranting individualized scrutiny and rules that are unlawful to maintain. Regions are also advised to submit their cases to Advice where rules of confidentiality of discipline or arbitration, or rules that may limit employees’ access to certain NLRB processes, arise.

Collective Bargaining; Faculty & Staff; First Amendment & Free Speech; Constitutional Issues

Janus v. American Federation of State, County, and Municipal Employees Council 31 (U.S. Supreme Court, June 27, 2018)

Order and Opinion reversing the judgment of United States Court of Appeals for the Seventh Circuit and remanding for further proceedings.  Petitioner Mark Janus declined to join his local union because he opposed the public policy positions the union advocated.  Still, pursuant to Illinois law, he was assessed an “agency fee” for lobbying, social and recreational activities, advertising, membership meetings and conventions, litigation, and other unspecified services.  The Petitioner alleged that the mandatory agency fee amounted to “coerced political speech” in violation of the First Amendment.  By imposing a “blanket requirement that all employees subsidize speech with which they may not agree,” the Court invalidated the agency fee under the compelled speech doctrine of the First Amendment. In so doing, the Court overruled its 1977 decision in Abood v. Detroit Bd. of Education.

Collective Bargaining; Faculty & Staff

Part-Time Faculty Association at Columbia College Chicago v. Columbia College Chicago (7th Cir. June 15, 2018)

Order affirming the district court’s order vacating the arbitration decision. Plaintiff, the Part-Time Faculty Association at Columbia College Chicago (PFAC), which represents part-time faculty members for collective bargaining at Columbia College Chicago (CCC), challenged a National Labor Relations Board (NLRB) determination that placed 50 – 75 CCC employees in its bargaining unit based on their dual full-time administrative and part-time faculty duties. Plaintiff pursued arbitration to review the NLRB’s determination and following a favorable outcome, sought to compel CCC to abide by the terms of the arbitration award. Consistent with controlling case law, the court found that the NLRB’s determination prevailed over the arbitration award. Moreover, because the arbitration award directly conflicted with the NLRB determination, the award was unenforceable as a matter of law.

Collective Bargaining

EPIC Systems Corporation v. Lewis (U.S. Supreme Court May 21, 2018)

Opinion of the U.S. Supreme Court reversing and remanding decisions from the Seventh and Ninth Circuits, and affirming the decision of the Fifth Circuit. As a condition of employment for their respective employers, the employees in Epic Systems Corp. v. Lewis, Ernst & Young LLP v. Morris, and National Labor Relations Board v. Murphy Oil USA signed arbitration agreements requiring them to pursue certain legal claims against their employers exclusively through arbitration and to waive their right to pursue class and collective actions. At issue was whether the National Labor Relations Act (NLRA)’s guarantee of employees’ right to engage in “concerted activities” in pursuit of their “mutual aid or protection” under Section 7—which the employees argued afforded them the right to pursue class and collective actions against their employers—made the arbitration contracts unenforceable pursuant to the Federal Arbitration Act’s “savings clause.” The Court found that the employees’ arbitration agreements were enforceable because the savings clause, which permits courts to “refuse to enforce arbitration agreements ‘upon such grounds as exist at law or in equity for the revocation of any contract,’" only recognized “generally applicable contract defenses, such as fraud, duress, or unconscionability” and did not recognize defenses that attacked a fundamental attribute of arbitration, such as the use of individualized proceedings. Moreover, Section 7 of the NLRA did not confer a right to class or collective actions; rather, it simply speaks to an employee’s right to organize unions and bargain collectively, and the Court was disinclined to interpret the provision more broadly as disapproving of arbitration.  Finding no “clear and manifest” Congressional intent to displace the NLRA with the FAA, the Court further declined to extend Chevron deference to a National Labor Relations Board (NLRB) 2012 opinion that supported such a finding because there was no ambiguity in the statutory language of the NLRA, and the NLRB lacked authority to interpret the FAA.

Collective Bargaining; Faculty & Staff

Bd. of Trs. of the Univ. of Ill. v. Ill. Educ. Labor Relations Bd. and Univ. Professionals of Ill. (Ill. App. April 16, 2018)

Opinion reversing the findings of the Illinois Educational Labor Relations Board. Petitioner, the Board of Trustees of the University of Illinois (UI), appeals the Illinois Educational Labor Relations Board (Board)’s decision to categorize department chairs at UI’s Springfield campus as non-managerial employees, thereby including them in the bargaining unit for tenured and tenure-track faculty members.  The Illinois Educational Labor Relations Act defines “managerial employee” as one who is “’engaged predominately’ in executive and management functions” and one who “has the responsibility of directing the effectuation of management policies and practice.” The court held that department chairs met both criteria based on their various responsibilities, such as recruiting, evaluating, and terminating adjuncts; overseeing their departmental budgets; ensuring academic and accreditation report compliance; attending leadership meetings; and handling disputes between faculty, students, and support staff. Moreover, the court found that UI’s model of shared governance did not preclude a finding of management status because department chairs continued to have independent authority to establish and effectuate departmental policies and were in a position to resolve grievances in UI’s interest.

Collective Bargaining; Faculty & Staff

SEIU Local 503, Opeu v. Portland State Univ. (Or. Empl. Rel. Bd. Feb. 13, 2018)

Order adopting the Administrative Law Judge’s Recommended Order and dismissing the Service Employees International Union (SEIU)’s Petition. Petitioner, a labor organization representing two separate bargaining units of Portland State University (PSU) employees, filed a petition for unit clarification of Campus Police Sergeants, who they argued were not “supervisory employees” and therefore should be included in one of SEIU’s bargaining units. In determining whether an employee has a supervisory status, Oregon state law looks to 1) whether the employee has the authority to take action or to recommend action in certain specified instances (e.g. hiring, transferring, suspending, promotion, discharging, disciplining, etc.), 2) whether exercising that authority requires independent judgment, and 3) whether the employee holds that authority in the interest of management. Answering each inquiry in the affirmative, the court found that Campus Police Sergeants were supervisory employees based on their ability to assign, direct, and discipline other officers.

Collective Bargaining; Contract Administration; Practice of Higher Education Law; Faculty & Staff

Asberry v. Los Angeles Community College District, et al. (Cal. Ct. App. 2d Jan. 3, 2018)

Order reversing the decision of the Los Angeles County Superior Court.  Plaintiff, an adjunct faculty member at Los Angeles Southwest Collage (LASC), alleged that LASC breached the collective bargaining agreement with Plaintiff’s union when LASC neglected to assign her to teach a second class over a 10-year period.  Plaintiff also brought a claim of promissory estoppel, alleging that the college’s Vice President for Academic Affairs promised to compensate her in the amount of $50,000 for the alleged oversight.  The appeals court found that the trial court had weighed too heavily the characterization of the action as one of tortious misrepresentation.  Rather, the court found that Plaintiff’s claims sounded in contract, not tort, and thus that the Defendants were not immune from suit.  

Collective Bargaining; Faculty & Staff

Part-Time Faculty Association at Columbia College Chicago v. Columbia College Chicago (N.D. Ill. Nov. 9, 2017)

Memorandum Opinion and Order denying Plaintiff’s Motion to Confirm an Arbitration Award and granting Defendant’s Motion to Vacate. Plaintiff is a union that represents Part-time Faculty at Columbia College Chicago (PFAC) and presently disputes whether Full-time Staff who Teach (FTST), a group of individuals with dual responsibilities as both full-time staff and part-time faculty, are part of the PFAC bargaining unit. At issue is whether the National Labor Relations Board (NLRB)’s ruling that FTST was part of the PFAC bargaining group is determinative, or whether an arbitrator’s ruling “as a matter of contract law” that FTST was not part of the PFAC bargaining group controls. The court found that the NLRB had ultimate authority when dealing with representation issues as provided by the National Labor Relations Act, and an arbitration award that conflicts with an NLRB determination is unenforceable. In support of its decision, the court further found that the arbitrator exceeded his contractual authority when he spoke to matters outside the scope of the written grievance between the parties and enforcement of the arbitral award would have conflicted with public policy.